Madras High Court
M.Kumaravel vs Ilangovai on 20 November, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
CRP.No.1552 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.R.P.No.1552 of 2024
and C.M.P.No.8358 of 2024
M.Kumaravel .. Petitioner
Versus
Ilangovai .. Respondent
Prayer:- Civil Revision Petition filed under Article 227 of the Constitution
of India, to set aside the order in C.M.A.No.27 of 2022 dated 21.11.2023
on the file of Additional District Judge (Fast Track Court) Villupuram,,
confirming the Fair and Decretal Order in I.A.No.439 of 2017 in
O.S.No.170 of 2016 dated 18.11.2022 on the file of IInd Additional
Subordinate Judge, Villupuram and thereby allow the Civil Revision
Petition.
For Petitioner : Mr.N.Suresh
For Respondents : Mr.V.Raghavachari, Senior Counsel
for Mr.V.G.Natarajan
ORDER
Challenging the order passed in CMA.No.27 of 2022 dated
21.11.2023, the present revision has been filed.
2. Brief facts leading to filing of this revision is as follows:
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2.a. The suit in O.S.No.170 of 2016 on the file of IInd Additional
Subordinate Judge, Villupuram was filed by the plaintiff/respondent to
enforce the contract for specific performance dated 16.05.2014. It is the
specific case of the plaintiff that the defendant has agreed to sell the suit
property for a total sale consideration of Rs.4,10,000/- and had received a
sum of Rs.4,00,000/- as an advance on the date of agreement. The time for
completion of sale is fixed for two years and he was always ready and
willing to perform the part of contact. As the defendant/respondent failed
to perform his part of contract, the suit came to be filed in O.S.No.170 of
2016 and the suit was decreed exparte on 05.12.2016.
2.b. The petitioner filed an application to condone the delay of 280
days in filing I.A.No.330 of 2017 to set aside the exparte decree, wherein,
it is stated by the revision petitioner that he was suffering from jaundice for
one year and therefore, the delay occured. Besides, stand was taken to the
effect that suit summons were not served. Such application was allowed by
the Trial Court on condition to pay a cost of Rs.2,500/- to the plaintiff.
Challenging the said order, the plaintiff/respondent filed
CRP(NPD).No.1371 of 2018 before this Court. By order dated 21.09.2020,
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this Court dismissed the revision petition confirming the order. Thereafter,
application has been filed under Order 9 Rule 13 of CPC to set aside the
exparte order dated 05.12.2016 on the ground that summons has not been
served and he was suffering from jaundice. The said application has been
opposed by the respondent herein on the ground that the reasons assigned
by the plaintiff is not correct. At the relevant period, the revision petitioner
had appeared in C.C.No.849 of 2016 in the same Court complex, that apart
summons is also properly served.
2.c. The Trial Court considering the issue and the allegations raised
by the defendant has held that the contention raised by the revision
petitioner that he was suffering jaundice, he could not appear before the
Court is not correct. The Trial Court relied upon the documents filed by the
respondent/defendant to show that the revision petitioner has appeared in
C.C.No.849 of 2016 on various dates. Further, summons also properly
served. Hence, dismissed the application to set aside the exparte order. On
appeal, the Appellate Court also confirmed the order of the Trial Court.
Challenging the said order, this revision has been filed.
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3. The learned counsel for the petitioner would submit that same
reasons have been assigned in application filed under Section 5 of the
Limitation Act to condone the delay of filing the application to set aside
the exparte order which had been allowed by the Court and reached finality
upto this Court in CRP(NPD).No.1371 of 2018. Whereas, the application
filed under Order IX Rule 13 of CPC has been dismissed. According to
him, when the Court has already accepted the reasons and condoned the
delay, application filed under Order IX Rule 13 ought to have been
allowed. Further, the suit is for specific performance and exparte decree is
also passed without their being an discussion with regard to the readiness
and willingness. The very contention of the plaintiff that on the date of
agreement, Rs.4 lakhs has been paid and for remaining Rs.10,000/-, two
years time has been fixed that itself shows that it is a clear case of loan
transaction. Therefore, submitted that the impugned order cannot be
sustained in the eye of law and seeks for allowing this revision.
4. The learned counsel for the petitioner further submitted that the
petitioner/defendant is ready to deposit the entire amount received on the
date of agreement along with interest for all these years and prays to set
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aside the exparte decree and chance may be given to contest the suit.
5. In support of his submissions, he placed reliance upon by the
judgment of this Court in the case of S.Nehru and another vs. S.Sivasankar
@ Babu @ Simanbal and others reported in 2015 (1) CTC 267, wherein,
this court has held that when the explanation for the delay and set aside ex
parte decree is one and the same, the explanation for the delay already
explained in application under Section 5 of the Limitation Act, application
under Order IX Rule 13 of CPC should have been allowed. Further, he also
placed reliance in the judgment of the Hon'ble Supreme Court in the case
of Robin Thapa vs. Rohit Dora reported in (2019) 7 SCC 359, wherein, it
is held that a litigation is based on adjudication on the merits of the
contentions of the parties. Litigation should not be terminated by default,
either of the plaintiff or the defendant. The cause of justice does require
that as far as possible, adjudication be done on merits.
6. Whereas, the learned senior counsel for the respondent submitted
that merely because the application to condone the delay has been allowed
in earlier occasion, it is not automatic that Order IX Rule 13 of CPC has to
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be allowed. It is his further contention that to determine application under
Order IX Rule 13 of CPC, it has to be seen whether the defendant honestly
and sincerely intended to remain present when the suit was called on for
hearing. Sufficient cause has to be shown as to what prevented from
appearing before the Court. On facts, Court below found that the reasons
assigned in the petition is factually not correct and the petitioner has not
approached the Court bonafidely. Hence, opposed the revision. In support
of his submissions, he placed reliance on the following judgments:
i) Arun Alexander Lakshman vs. A.P.Vedavalli reported in 2007 (4) CTC
ii) Parimal vs. Veena Alias Bharti reported in (2011) 3 SCC 545
iii) K.Govindasamy vs. Dhanam Ammal and 5 others reported in 1994-2-
L.W.93
7. Heard both sides and perused the materials placed on record.
8. It is not in dispute that the suit has been filed for enforcement of
contract of the year 2014. It is averred in the plaint that 4 lakhs out of the
total sale consideration of Rs.4,10,000/- has been paid to the defendant on
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the date of sale agreement itself. For remaining payment of Rs.10,000/-,
two years time has been fixed. Be that as it may, the fact remains that the
earlier application filed by the petitioner to condone the delay of 280 days
is allowed by the Court and the same is confirmed by this Court in
CRP(NPD).No.1371 of 2018. The reasons assigned for condonation of
delay is that the petitioner was suffering from jaundice and summons were
not served. The same reasons are averred in the application filed under
Order IX Rule 13 of CPC. However, while deciding the application under
Order IX Rule 13, the Court factually found that the contentions that
summons has not been served is not correct. Further, the petitioner was
suffering from jaundice has also not been established. The Trial Court also
taken note of the appearance of the petitioner in criminal court at the
relevant point of time and rejected his contention. This Court is also in
agreement with the Trial Court reasoning for dismissing the application on
merits. The fact remains that the same reasons have also been accepted by
the Court in earlier occasion and this Court has also approved it in
CRP(NPD).No.1371 of 2018.
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9. What is required under Order 9 Rule 13 of CPC is sufficient cause
which prevented the defendant from appearing before the Court when the
suit was called on for hearing. Therefore, it is imperative that sufficient
cause has been shown by the party. Though this Court is of the agreement
with the learned Senior Counsel for the respondent that the reasons has not
been established and sufficient cause has not been shown. The fact remains
that same reasons is already accepted by this Court while condoning the
delay of 280 days. It is relevant to note that though the party has not
established sufficient cause while deciding whether there is sufficient
cause or not, the Court must also bear in mind the object of doing
substantive justice. The conduct of the party in the present case though is
not appealing to the satisfaction of this Court, the same cannot be a ground
to take away the substantive right.
10. Mere negligent or mistake on the party is the order of the day.
However, making false affidavit has become routine affairs of the
irresponsible counsel, therefore, the substantive right of the party cannot
be taken away. The Hon'ble Apex Court in the Robin Thapa's case (cited
supra). On facts finding that the appellant contention that he came to know
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about the passing of decree only on 17.11.2015 cannot be acted upon and
disbelieved the contention, still considering the fact that the suit was filed
for specific performance, in the interests of justice allowed the application
on terms, by holding so, the Hon'ble Apex Court has held that Ordinarily, a
litigation is based on adjudication on the merits of the contentions of the
parties. Litigation should not be terminated by default, either of the
plaintiff or the defendant. The cause of justice does require that as far as
possible, adjudication be done on merits.
11. Further, a Division Bench of this Court in Arun Alexander
Lakshman's case (cited supra) has held that while considering the
application under Section 5 of the Limitation Act, Court can also examine
whether the petitioners have arguable points on facts and law. Failure to be
extra vigilant by the party cannot be a ground to deny the opportunity to
contest the suit and allowed the application with a cost of Rs.50,000/- and
to deposit Rs.3,50,000/- to the credit of the suit.
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12. Considering the above dictum and the nature of the suit which is
filed for specific performance and exparte decree is also passed without
discussing as to readiness and willingness on the part of the respondent
and substantial sale consideration is said to have been paid on the date of
agreement and two years period is agreed for payment of the balance
Rs.10,000/-, this Court is of the view that the suit being filed for specific
performance to enforce the agreement is inclined to grant one more
opportunity to the revision petitioner/defendant subject to payment of costs
of Rs.25,000/- payable to the respondent/plaintiff within a period of one
month from the date of receipt of a copy of this Order. Besides, the
petitioner shall also deposit Rs.4 lakhs of principal amount along with
interests for all these years totalling to 8 lakhs to credit of the suit. This
direction is passed in view of the submissions made by the learned counsel
for the revision petitioner.
13. Accordingly, the impugned order dated 21.11.2023 passed by the
Appellate Court stands set aside and this revision petition stands allowed.
The Trial Court shall decide the suit on merits and dispose within a period
of six months from the date of receipt of a copy of this Order. No costs.
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Consequently, connected miscellaneous petition stands closed.
20.11.2024
dhk
Index : Yes/No
Internet : Yes/No
Neutral Citation : Yes/No
To,
1.Additional District Judge
Additional District Court (Fast Track Court)
Villupuram
2. The II Additional Subordinate Judge,
II Additional Subordinate Court
Villupuram
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N.SATHISH KUMAR, J.,
dhk
20.11.2024
https://www.mhc.tn.gov.in/judis
